K J PREETHA Vs. U K SHYAMALAVALLY

JUDGEMENT

(1.) The appellant/plaintiff in A.S.No.473 of 1992/O.S.No.143 of 1989 is the review petitioner who has sought for getting the judgment of this Court in the A.S. revised as this Court in the judgment allowing the plea for partition of the plaint schedule properties upholding the case of the petitioner that the Will on the basis of which the petitioner was sought to be disinherited is forged, inadvertently held that the petitioner is not entitled to get item No.2 of the plaint schedule properties partitioned and also omitted to consider the plea of the petitioner that items 4 and 5 are liable to be partitioned. The court has also omitted to provide the share of profits to which the petitioner is lawfully entitled. The above constituted error apparent on the face of the record and mistake committed unwittingly.

(2.) The respondents have strongly opposed the application pointing out that there is a specific finding by this Court that the petitioner is not entitled to any share in plaint A schedule item No.2 and that the same can be set right only in appellate proceedings. It was further contended that the respondents had taken up the matter before the Suprme Court vide S.L.P. filed and the S.L.P.was dismissed after issuing notice to the petitioner herein and hence there is merger of the decree of this Court with the order of the Apex Court and hence the proceedings cannot be upset by filing a review petition before this Court.

(3.) On an examination of the respective contentions of the parties and the judgments of the court below as well as that of this Court, we find that virtually the only case set up against the plea of the petitioner who is the widow of the deceased Rajeevan who is the son of the first defendant and the brother of the rest of the defendants, is that the deceased Rajeevan had left a testament as per which he had bequeathed the items of properties sought to be partitioned to his legal heirs including the petitioner, his wife, although only a minor negligible share was left in the above Will to the petitioner. It is the case of the respondents/defendants that the deceased and the petitioner/wife was not in good terms and that she was living separately and hence he disposed of the properties as per the above Will. It is also pointed out that the deceased and the petitioner was not having children. It is seen from the evidence and discussions that the deceased was addicted to alcohol and on account of the above reason the petitioner and the deceased used to quarrel frequently and the petitioner practically left the company of the deceased. The deceased Rajeevan died very young at the age of 28. The case of the petitioner that the Will is a forged one was rejected by the trial court, but upheld by this Court vide a detailed judgment. It is as per the above Will dated 15-12-1988 (Rajeevan died on 29-12-1988 and the petitioner and Rajeevan got married in 1987) that the entire pliant A schedule items were bequeathed to the respondents, i.e.his mother, brothers and sister and provided only half share in item No.3 in D schedule movables and directed to deposit Rs.25,000/- in a Bank and to pay its interest to the petitioner for three years or until she remarries. All the items of plaint A schedule is covered by the above Will. Item Nos.1 to 3 of plaint A schedule are items 1 to 2 and 6 of Ext.A1 Will executed by the deceased father of Rajeevan bequeathing the above items to Rajeevan and his brothers and sister who are defendants 2 to 6. Item 4 was acquired by Rajeevan and his brothers and sister and his mother vide registered document No.9/5/1972 and item No.5 was obtained jointly by Rajeevan, his sister (defendant No.2) and one brother (defendant No.3) by registered document dated 16-8- 1977.